PHILADELPHIA – After hearing oral arguments from counsel representing both the Republican gubernatorial candidate and Senate President pro tempore Jake Corman and the administration of Gov. Tom Wolf, citizens await a forthcoming decision on the fate of the statewide school mask mandate from the Supreme Court of Pennsylvania.
Counsel for both the plaintiffs and the governor appeared at Philadelphia City Hall on Wednesday, presenting their respective arguments before the state’s high court.
Justice Debra Todd said the Court was being asked to undertake “a very, very small analysis of what is really a very big issue.”
Corman, Rep. Jesse Topper, Calvary Baptist Church, Hillcrest Christian Academy and 10 parents of schoolchildren in three different school districts statewide (Wyomissing Area, Butler Area and Slippery Rock Area) first filed suit in the Commonwealth Court in September against the Wolf Administration, including Secretary of Health Alison Beam.
The plaintiffs argued that her order was invalid since it did not proceed through the state’s regulatory review process and due to recently-approved amendments to the Pennsylvania Constitution curtailing Wolf’s emergency powers, and the Commonwealth Court agreed with that rationale.
The Commonwealth Court had ruled on Nov. 10 that an order issued by Beam, which took effect in September and mandated that students, teachers and support staff in all Pennsylvania public schools, private schools and child care facilities wear face coverings when inside, regardless of vaccination status, was unenforceable.
However, five justices from the state Supreme Court had issued a per curiam order on Nov. 30 that the mask mandate, which the Commonwealth Court of Pennsylvania previously ruled four weeks ago was unenforceable and had to be eliminated by Dec. 4, would instead be reinstated until the state’s high court heard oral arguments in the case.
Supreme Court of Pennsylvania Justice Sallie Updyke Mundy dissented from that order, while fellow Justice Thomas G. Saylor did not participate in its resolution.
The state Supreme Court, which is comprised of a majority of Democratic judges, may find the Wolf Administration’s case more favorably than did the Commonwealth Court, which features a majority of Republican judges.
According to Senior Deputy Attorney General Sean A. Kirkpatrick, Beam possessed authority to impose the school mask mandate through a regulation which seeks to manage infectious diseases and sought to act due to children being hospitalized due to the Delta variant of COVID-19.
Kirkpatrick added this form of “modified quarantine” was an appropriate decision that led to a return of in-person learning in schools and was, overall, a better option than mandating that students be tested daily for COVID-19 before entering their classrooms.
The argument led to an inquiry from state Supreme Court Justice Kevin M. Dougherty.
“How does that regulation trump the fundamental right of a parent to determine what is best for their child? Share with me how an unelected official’s mandate trumps a constitutional right,” Dougherty said.
Todd responded, asking if the measure’s true purpose was in fact what was best for other children, in the name of preventing spread of the virus.
Plaintiff counsel Thomas Breth countered that the Wolf Administration had relied upon language calling for “any other disease control measure” to justify Beam’s order, and not the argument of “modified quarantine” it now put forth before the state Supreme Court.
Todd inquired if state regulations would permit mandatory COVID-19 testing for students instead of the mask mandate, and Breth replied that he didn’t think there was – and when asked if his clients would oppose individual school districts issuing mask mandates, Breth stated he and his counsel would perform that analysis.
On behalf of his clients, Breth explained their issue was caused by the state going outside the regulatory process.
A spokesperson for Wolf recently issued a statement on the case’s developments at the state Supreme Court.
“As our top priority remains protecting the health and safety of schoolchildren and staff, we're pleased that the Supreme Court has granted the administration’s request to extend the stay of the Commonwealth Court's decision while the Supreme Court hears the appeal. That said, nothing changes and the masking mandate remains in place,” Wolf Administration Press Secretary Elizabeth Rementer said.
Wolf had initially expressed the need for a universal, statewide order after many of Pennsylvania’s 500 school districts did not impose their own mask mandates and due to several thousand students having tested positive for COVID-19 since the start of the new school year.
Wolf announced last month that he would return authority over mask mandates to local school districts in January.
Supreme Court of Pennsylvania case 83 MAP 2021
Commonwealth Court of Pennsylvania case 294 M.D. 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com